Black Administration Act: extension of repeal date; Adoption of Committee Reports on Notices in respect of judges and magistrate's salary increases, and on suspension of magistrate

Meeting report

Presentation on the Extension of date for final repeal of the Black Administration Act (the Act)
Ms Christine Silkstone, Content Advisor for the Portfolio Committee on Justice and Constitutional Development, informed Members that the Black Administration Act was repealed in 2005, except for certain sections which were left in place so that the traditional courts could continue to function. The pending Traditional Courts Bill would confer the authority on traditional courts, and would effectively take over and expand upon the provisions of the Black Administration Act, replacing sections 12 and 20 of that Act. During the Third Parliament the date for the repeal had been extended to December 2009. In 2008, when this was done, the Portfolio Committee on Justice and Constitutional Development had been working on the Traditional Courts Bill, and had hoped to complete this Bill. However, when it had held public hearings, it because apparently that the Bill was a very controversial matter, especially the extent around which consultation had taken place. The Portfolio Committee had been unable to finish its work. The Bill was revived by the Fourth Parliament at the stage where the Third Parliament had left it. Although the Committees had had briefings on the Bill, they had realised that they would not be able to process the Bill by the end of September 2009. It had therefore been decided to seek another extension for the repeal of the remaining sections of the Black Administration Act, by way of a Repeal of Balck Administration Act and Amendment of Certain Laws Amendment Bill, to allow the Traditional Courts to continue functioning until the Traditional Courts Bill could be enacted. The present document was therefore seeking to extend the deadline for the final repeal of the Black Administration Act sections from December 2009 to December 2010.

Discussion
Mr D Bloem (COPE; Free State) asked who was supposed to present the Bill to the Committee.

The Chairperson responded that the Bill was introduced by the Portfolio Committee on Justice and Constitutional Development.

Ms Silkstone added that the Department of Justice and Constitutional Development (DOJ) would have another look at the Bill.

Mr A Matile (ANC; Gauteng) stated that he was in agreement with the contents of the Bill, but he was concerned that the National Assembly was undermining the National Council of Provinces, and that future the correct personnel should brief the Committee.

Mr M Mokgobi (ANC; Limpopo) agreed that the incorrect procedure had been followed, since a Parliamentary Content Advisor could not brief the Committee.

Mr Vhonani Ramaano, Committee Secretary, Portfolio Committee on Justice and Constitutional Development, said that the Bill was initiated by the Portfolio Committee on Justice and Constitutional Development. The Department had no role to play as the Bill came from Parliament.

Mr Matile responded that in that instance the Chairperson of the Portfolio Committee on Justice and Constitutional Development should have briefed the Committee, and not the staff.

Mr A Watson (DA; Mpumalanga) said that the DOJ should be available at all times as this was a matter of procedure. If the Bill was from another committee, then the most senior person from that committee should have briefed this Committee.

Mr Bloem wondered who would respond if the Committee decided to ask legal questions. He felt strongly that the Department should have been present to answer some of the questions. The Committee should not allow a situation where the NCOP would be undermined in any way.

Mr Mokgobi said that the time had come for the NCOP to be respected. He proposed that the Bill should be postponed.

Mr T Chaane (ANC; North West) said that the Committee needed to guard against being undermined. At the same time, he noted that the proposed amendment was for an extension of the date only, and proposed that this should be accepted.

Mr Bloem said that this was the last day, and even the last few hours before a vote would be taken in the Chamber. It was unacceptable that the NCOP was expected to rubber stamp the Bill.

Mr L Nzimande (ANC; KwaZulu Natal) begged his colleagues to re-consider their views. If a vote was not passed on the Bill now, it would only be tabled before the Committee again in March 2010 again.

The Chairperson pleaded with members to not be emotional as the Department was currently dealing with the Bill. If there were any issues that the Committee wanted to raise then Mr JB Skosana from the Department of Justice would be able to assist the Committee. He added that the Members’ complaints would be raised within the internal parliamentary structures.

Mr J Bekker (DA; Western Cape) agreed with the Chairperson's view.

Mr Mokgobi said that the basis of his objection was procedural.

Mr Bloem added that he also supported the Bill but the manner and procedure in which it was tabled was incorrect.

Mr Matila said that he had just spoken to his colleague and they supported the Bill.

The Chairperson again informed the members that their views had been noted and would be raised with the relevant authorities.

The Committee agreed to the Bill without amendments.

Notices: Recommendations of the Independent Commission for the Remuneration of Public Office Bearers in respect of salaries, allowances and benefits of public office bearers for 2009/10
Mr JB Skosana, Chief Director: Policy, Department of Justice, informed the Committee that he would deal with the two notices simultaneously.

The remuneration and salaries of judges and magistrates were governed by two separate Acts - namely the Judges Remuneration and Conditions of Employment Act, and the Magistrates Act, 1993 respectively. Consultations had taken place and a submission was made to the President, after the Independent Commission for the Remuneration of Public Office Bearers (Commission) had met with the Minister of Justice and Constitutional Development. The President would publish the notices after they were approved by Parliament. They would then be implemented. This was to safeguard the independence of the judiciary.

The Commission had recommended an increment in salaries of 8%; but the President had approved 7% across the board. The notices now reflected the 7% that was approved by the President. The notice by the President provided that any reference to Magistrates who had been permanently appointed in terms of Section 9(1), read together with Section 10, of the Magistrates Act, would not be applicable to a Magistrate that was not permanently appointed. He explained that the law made provision for the Minister of Justice and Constitutional Development to make three part-time appointments, for a period of three months. One of the challenges was that in some instances two Acting Magistrates would be on leave at the same time. Another challenge was that Acting Magistrates wanted the same benefits as permanent Magistrates. The President had been advised that Acting Magistrates should be paid for each day that they would work.

Discussion
Mr Matila said that he was aware of a situation where a magistrate acted for more than 12 months and was then denied the general benefits of permanent appointees. Most acting magistrates were black, this was a serious problem.

Mr Watson responded that the President had expressed himself on the matter, and therefore it should be debated elsewhere. He proposed an adoption of the report as presented.

Mr Skosana said that in terms of the law an Acting magistrate could only be appointed for 12 months.

Mr Bloem commented that this was a problem in South Africa as one found that there were acting appointees for at least 3 years or more.

Mr Skosana said that the law did not allow this and any matters that were pronounced on by such persons were not valid. The specific instances where this was happening would be looked at.

Members adopted the Report and the two notices in respect of salaries

Consideration of Magistrate Ndamase's provisional suspension,
Mr Bloem noticed that the recommendation stated that the provisional suspension of Magistrate Ndamase was not being supported. He asked what were the reasons for the recommendation. He recalled that the Committee had supported this.

The Chairperson stated that the suspensions that had been supported by the Committee included the matter of Magistrate Oliphant.

Mr Bloem asked if the matter at hand was that of the Magistrate who was accused of sexual harassment.

The Chairperson responded that this was a separate matter.

Mr Matila recommended that the Committee should agree with the recommendations. In addition the committee should investigate the Magistrates’ Commission as well as the Magistrate’s Court in Pretoria.

Mr M Makhubela (COPE; Limpopo) supported both proposals as the issue of the magistrates in Pretoria was very complex.
 
Mr Matila agreed.

Mr Watson said that he had no problem; he wanted to know if there was an internal outcome of this disciplinary matter.

Mr Matila mentioned that he received a call where he was informed that Magistrate Ndamase could possibly be charged again as the procedures that were followed were not correct. It was important to carry out the investigations of the Pretoria Magistrates Court as well as the Magistrates Commission.

Mr L Nzimande said that, given the NCOP relationships with the Magistrates’ Commission, the Committee should be cautious in how it proceeded as this may cause technical problems.

Mr Matila said that the Portfolio Committee in the National Assembly took the same view that it was the role of the Committee to see what was wrong with the Magistrates’ Commission.

Mr Bloem agreed that it was the role of the Committee to perform oversight and see what was wrong, as this was expected of the Members in their roles as public representatives.

Mr Watson said that the Committee would only engage more closely with the Magistrates’ Commission to better understand it as well as the challenges facing the judicial system. It would be particularly interested to understand whether the Commission had mediatory or conciliatory powers in matters such as these. He recommended that the Report should be adopted.

Members agreed to adopt the Report.

The meeting was adjourned.